This chapter analyses the obligations concerning the enforcement of substantive Union policies by the member states within the national legal systems. The use of criminal penalties for the ...
More

This chapter analyses the obligations concerning the enforcement of substantive Union policies by the member states within the national legal systems. The use of criminal penalties for the enforcement of substantive Union law arises in two main categories of situation. The first can usefully be termed the ‘velvet glove’: in the absence of Union legislation prescribing precise sanctions for its own enforcement, the member states are free to impose appropriate sanctions within their own legal systems — including penalties of a criminal nature — subject to various obligations imposed under Union law as interpreted by the Court in the famous Greek Maize ruling. In the second situation, the Union legislature positively requires the member states to criminalize certain infringements of Union law, and may even prescribe the detailed rules governing the imposition of liability and the type/level of sanction. That ‘iron fist’ can claim a constitutional provenance both more recent and more rumbustious than the Greek Maize jurisprudence: pre-Lisbon, bitter institutional disputes about whether criminal sanctions could or should be imposed under the First (or instead the Third) Pillar culminated in the Court's controversial rulings in the Environmental Crimes and Ship-Source Pollution cases; since 1 December 2009, the revised provisions of the Treaty on the Functioning of the European Union have radically changed the relevant legal framework once again.Less

From the Velvet Glove to the Iron Fist: Criminal Sanctions for the Enforcement of Union Law

Michael Dougan

Published in print: 2012-03-15

This chapter analyses the obligations concerning the enforcement of substantive Union policies by the member states within the national legal systems. The use of criminal penalties for the enforcement of substantive Union law arises in two main categories of situation. The first can usefully be termed the ‘velvet glove’: in the absence of Union legislation prescribing precise sanctions for its own enforcement, the member states are free to impose appropriate sanctions within their own legal systems — including penalties of a criminal nature — subject to various obligations imposed under Union law as interpreted by the Court in the famous Greek Maize ruling. In the second situation, the Union legislature positively requires the member states to criminalize certain infringements of Union law, and may even prescribe the detailed rules governing the imposition of liability and the type/level of sanction. That ‘iron fist’ can claim a constitutional provenance both more recent and more rumbustious than the Greek Maize jurisprudence: pre-Lisbon, bitter institutional disputes about whether criminal sanctions could or should be imposed under the First (or instead the Third) Pillar culminated in the Court's controversial rulings in the Environmental Crimes and Ship-Source Pollution cases; since 1 December 2009, the revised provisions of the Treaty on the Functioning of the European Union have radically changed the relevant legal framework once again.

This chapter discusses how the procedure envisaged in the Treaty on the Functioning of the European Union works in practice, from the perspective of a sector where enforcement against member states ...
More

This chapter discusses how the procedure envisaged in the Treaty on the Functioning of the European Union works in practice, from the perspective of a sector where enforcement against member states has been particularly important: environmental policy. Although the general procedures for handling complaints are the same across the Commission, the individual Directorates-General have different approaches depending on the number and type of complaints they receive. In the field of environment, cases of alleged ‘bad application’ of Union law are relatively more frequent but are also harder to establish since the Commission does not have inspectors that it can send to member states to verify conflicting claims in situ. It is negotiated compliance rather than Court action that is most important. Although the direct enforcement procedure led by the Commission will remain important, the Commission is also encouraging the improvement of enforcement procedures at national level, through national courts.Less

Sibylle Grohs

Published in print: 2012-03-15

This chapter discusses how the procedure envisaged in the Treaty on the Functioning of the European Union works in practice, from the perspective of a sector where enforcement against member states has been particularly important: environmental policy. Although the general procedures for handling complaints are the same across the Commission, the individual Directorates-General have different approaches depending on the number and type of complaints they receive. In the field of environment, cases of alleged ‘bad application’ of Union law are relatively more frequent but are also harder to establish since the Commission does not have inspectors that it can send to member states to verify conflicting claims in situ. It is negotiated compliance rather than Court action that is most important. Although the direct enforcement procedure led by the Commission will remain important, the Commission is also encouraging the improvement of enforcement procedures at national level, through national courts.

The customs union is one of the important elements of the common market that was established by the European Economic Community (EEC) Treaty. However, the concept of the common market has now ...
More

The customs union is one of the important elements of the common market that was established by the European Economic Community (EEC) Treaty. However, the concept of the common market has now disappeared from the Treaty on the Functioning of the European Union (TFEU). This chapter identifies some of the problems — internal and external — in the performance of the customs union and how they have been and are being addressed. This chapter determines that the performance and practice of the internal market and customs union show that in the EU they are linked concepts that form relevant elements of the construction of the EU. It also addresses the existential dependency question with regards to the relationship between the economic union and the EU's persistence.Less

Some Problems of the Customs Union and the Internal Market

Laurence W Gormley

Published in print: 2012-06-21

The customs union is one of the important elements of the common market that was established by the European Economic Community (EEC) Treaty. However, the concept of the common market has now disappeared from the Treaty on the Functioning of the European Union (TFEU). This chapter identifies some of the problems — internal and external — in the performance of the customs union and how they have been and are being addressed. This chapter determines that the performance and practice of the internal market and customs union show that in the EU they are linked concepts that form relevant elements of the construction of the EU. It also addresses the existential dependency question with regards to the relationship between the economic union and the EU's persistence.

This chapter argues that in the European context, the key test in assessing the legality of public restraints (as opposed to private practices) ought to be whether they infringe the internal market ...
More

This chapter argues that in the European context, the key test in assessing the legality of public restraints (as opposed to private practices) ought to be whether they infringe the internal market provisions rather than the competition law rules of the Treaty on the Functioning of the European Union (TFEU). Indeed, the internal market provisions are best suited to achieve the right balance between the pursuit of allocative efficiency and the necessary deference to Member States' sovereignty. In turn, they effectively prevent protectionist behaviors while preserving Member States' ability to pursue redistributive objectives. Hence, it is time to depart from the state action doctrine as developed by the EU courts and to consider public restraints through different lenses other than private practice.Less

A Global Perspective on State Action

Damien M. B. Gerard

Published in print: 2012-06-13

This chapter argues that in the European context, the key test in assessing the legality of public restraints (as opposed to private practices) ought to be whether they infringe the internal market provisions rather than the competition law rules of the Treaty on the Functioning of the European Union (TFEU). Indeed, the internal market provisions are best suited to achieve the right balance between the pursuit of allocative efficiency and the necessary deference to Member States' sovereignty. In turn, they effectively prevent protectionist behaviors while preserving Member States' ability to pursue redistributive objectives. Hence, it is time to depart from the state action doctrine as developed by the EU courts and to consider public restraints through different lenses other than private practice.

This chapter focuses on a lesser known limit to competition law—that of implementing effective and proportional remedies. It attempts to integrate the issue of discretionary remedialism and the ...
More

This chapter focuses on a lesser known limit to competition law—that of implementing effective and proportional remedies. It attempts to integrate the issue of discretionary remedialism and the distinction between the liability and remedial phase to the broader question of the relation between efficiency, distributive justice on the one hand and corrective justice on the other. It examines the importance of “discretionary remedialism,” in particular in the context of antitrust, but also analyzes why it is important to limit its effects. The chapter also explores the objectives pursued by competition law remedies, in order to show that a coherent theory of competition law remedies is incompatible with a sharp dichotomy between liability and remedy questions. It illustrates the link between the two issues by looking to the past jurisprudence on remedies of the European Commission and the European courts. The emergence of a remedial proportionality test in EU competition law demonstrates the necessary logical connection between the remedy and the liability phase. The final section explores if, and how, the remedial proportionality test will operate in the context of an “effects-based approach” under Article 102 of the Treaty on the Functioning of the European Union.Less

Competition Law Remedies : In Search of a Theory

Ioannis Lianos

Published in print: 2012-06-13

This chapter focuses on a lesser known limit to competition law—that of implementing effective and proportional remedies. It attempts to integrate the issue of discretionary remedialism and the distinction between the liability and remedial phase to the broader question of the relation between efficiency, distributive justice on the one hand and corrective justice on the other. It examines the importance of “discretionary remedialism,” in particular in the context of antitrust, but also analyzes why it is important to limit its effects. The chapter also explores the objectives pursued by competition law remedies, in order to show that a coherent theory of competition law remedies is incompatible with a sharp dichotomy between liability and remedy questions. It illustrates the link between the two issues by looking to the past jurisprudence on remedies of the European Commission and the European courts. The emergence of a remedial proportionality test in EU competition law demonstrates the necessary logical connection between the remedy and the liability phase. The final section explores if, and how, the remedial proportionality test will operate in the context of an “effects-based approach” under Article 102 of the Treaty on the Functioning of the European Union.

This book aims to resolve a puzzle: how can two systems of competition law and policy, whose enforcement and judicial institutions employ similar concepts and legal language, reach very different ...
More

This book aims to resolve a puzzle: how can two systems of competition law and policy, whose enforcement and judicial institutions employ similar concepts and legal language, reach very different results on a number of current, significant antitrust issues? The most important provisions of the Sherman Act and the competition sections of the Treaty Founding the European Union are striking similar, but a combination of differences in social values, political institutions, and legal precedent retard close convergence. The work explores the main contested areas of contemporary antitrust: mergers, price discrimination, predatory pricing, exclusive supply, conditional rebating, and intellectual property in the context of dynamic competition. In each area we focus on how the prevalent antitrust analyses differ between the EU and the U.S., the policy ramifications of these differences, and how the analyses used by the enforcement authorities or the courts in each of these areas relate to those in other areas. The book also tracks several substantive themes that appear across the chapters, such as pricing incentives and constraints, welfare effects, and whether competition tends to be viewed as an efficiency generating process or as rivalry. We conclude with forecasts and suggestions about how greater compatibility if not convergence might ultimately be attained.Less

The Atlantic Divide in Antitrust : An Examination of US and EU Competition Policy

Daniel J. GiffordRobert T. Kudrle

Published in print: 2015-02-11

This book aims to resolve a puzzle: how can two systems of competition law and policy, whose enforcement and judicial institutions employ similar concepts and legal language, reach very different results on a number of current, significant antitrust issues? The most important provisions of the Sherman Act and the competition sections of the Treaty Founding the European Union are striking similar, but a combination of differences in social values, political institutions, and legal precedent retard close convergence. The work explores the main contested areas of contemporary antitrust: mergers, price discrimination, predatory pricing, exclusive supply, conditional rebating, and intellectual property in the context of dynamic competition. In each area we focus on how the prevalent antitrust analyses differ between the EU and the U.S., the policy ramifications of these differences, and how the analyses used by the enforcement authorities or the courts in each of these areas relate to those in other areas. The book also tracks several substantive themes that appear across the chapters, such as pricing incentives and constraints, welfare effects, and whether competition tends to be viewed as an efficiency generating process or as rivalry. We conclude with forecasts and suggestions about how greater compatibility if not convergence might ultimately be attained.